Public Bill Committee

[Mr. Edward OHara in the Chair]

Edward O'Hara: Before we begin, I shall make a few preliminary announcements from the Chair. First, as a humanitarian gesture, hon. Members may remove their jackets. In return for that humanitarian gesture, I request that all hon. Members ensure that their mobile phones are either switched off or in silent mode during meetings of the Committee. There is a money resolution in connection with the Bill, and copies are available in the Room.
I remind hon. Members that adequate notice should be given of amendments. As a general rule, my fellow Chairman, Mr. Bercow, and I do not intend to call starred amendments, including any starred amendments that may be reached during an afternoon sitting of the Committee.
Turning to the business of the Committee, first, we shall be considering the programme motion, which is on the amendment paper. A debate may take place, but it is limited to half an hour. We will then proceed to a motion to report written evidence, which is also on the amendment paper. I hope that we can take that formally.

Mike O'Brien: I beg to move,
That
(1) the Committee shall (in addition to its first meeting at 10.30 am on Tuesday 16 June) meet
(a) at 4.00 pm on Tuesday 16 June;
(b) at 9.30 am and 1.00 pm on Thursday 18 June;
(c) at 10.30 am and 4.00 pm on Tuesday 23 June;
(d) at 9.30 am and 1.00 pm on Thursday 25 June;
(2) the proceedings shall be taken in the following order: Clauses 1 to 13, Schedule 1, Clauses 14 to 16, Schedule 2, Clauses 17 to 19, Schedule 3, Clauses 20 to 24, Schedule 4, Clauses 25 to 33, Schedule 5, Clauses 34 to 37, Schedule 6, Clauses 38 to 40, new Clauses, new Schedules, remaining proceedings on the Bill;
(3) the proceedings shall (so far as not previously concluded) be brought to a conclusion at 5.00 pm on Thursday 25 June.
I begin by welcoming you to the Chair of the Committee, Mr. OHara. I hope that under the expert tutelage of yourself and Mr. Bercow we can make good progress in handling this important Bill for the national health service. I hope that this resolution of the Programming Sub-Committee is passed by the Committee, so that we can meet and discuss in an orderly way the various clauses and schedules of the Bill.

Stephen O'Brien: Thank you, Mr. OHarawith three apostrophes in the Room, we are going to have some fun. I join the welcome given to you and your co-Chairman by the Minister. We look forward to being guided and supervised under your experience and tutelage. I am sure that we will all endeavour to ensure that the Bill is given proper scrutiny.
As a matter of principle, the official Opposition have concerns about the programming of Bills and programme motions. Indeed, from time to time we have raised formal objections about the number of Bills that are not given adequate time to be scrutinised properly. None the less, on this occasion the eight scheduled sittings should be enough to give proper scrutiny to the Bill. We will do our best to ensure that we meet that timetable.

Question put and agreed to.

Resolved,
That, subject to the discretion of the Chairman, any written evidence received by the Committee shall be reported to the House for publication.[Mr. Mike OBrien.]

Clause 1

NHS Constitution

Stephen O'Brien: I beg to move amendment 1, in clause 1, page 1, line 7, leave out first the and insert any.

Edward O'Hara: With this it will be convenient to discuss amendment 2, in clause 1, page 1, line 8, leave out from State to end and insert
and approved by each House of Parliament.

Stephen O'Brien: Clause 1 effectively establishes the subject of the first chapter of the Bill, the NHS constitution. My two amendments are mutually reliant and make sense together, and I shall therefore seek to address both in one approach.
The amendments would change the initial phraseology to refer to any document and would remove the need to be date specificthey would remove the specificity from the Bill and seek to probe to some degree what the Government mean by this constitution. I hope, Mr. OHara, that you will give me a little latitude on these amendments as, I hope you agree, it will be useful for me to set out the questions of the constitution from this side of the House. That may enable us to move through later amendments more quickly. However, I will be guided by you to remain in order.
As the Committee goes through the Bill, time and againas with so much Government legislationwe will meet regulations. The justification is always not to have too much detail in the Bill. How, therefore, does the Minister justify the specific reference to a document published on 21 January 2009? I hope that he will tell the Committee about analogous provisions in other legislation where a document is defined by its name and date but not its content.
The amendments also seek to reassert the power of the Houses of Parliament on the NHS constitution. When the Prime Minister launched his leadership bid, he said:
One of my first acts as prime minister would be to restore power to Parliament in order to build
the trust of the British people in our democracy. Government must be more open and more accountable to Parliament.
In his statement to the House last Wednesday, he said:
we are removing ancient royal prerogatives and making the Executive more accountable to Parliament.[Official Report, 10 June 2009; Vol. 493, c. 797.]
He uses we and claims that the Executive are restoring power to Parliament, whereas that is, of course, a responsibility for the House.
The Prime Minister announced the review, which will be chaired by the Labour Chairman of the Public Administration Committee, the hon. Member for Cannock Chase (Dr. Wright). The review will consider how Parliament can strengthen its scrutiny of the Government and how control of Parliaments daily business can be wrestled away from them and their Whips. Yet, the Government are bringing to the House legislation that enshrines something, the contents of which the House has no power over. In light of the claimed democratic accountability and the move to more open and transparent government, and particularly, taking into account the Governments rhetoric on restoring power to Parliament, how can the Minister justify an undebated constitution? What has been published and put forward as a document is, effectively, a settled item.
Not only has Parliament had no opportunity to debate the contents of that constitution, but the constitution was launched in a closed signing ceremony at No. 10, where it was given legitimacy, if not force, by the hand of the Prime Ministeragain, sidelining Parliament. Furthermore, if the amendment succeeds and the constitution gets the parliamentary debate that our NHS deserves and is amended as it should be, how will the Minister justify the cost of pulping all the documents that have been printed?
In addition, there is now an illogicality in the legislation. The Government rightly accepted the amendments put forward by my noble Friend Lord Howe in the other place that introduced clause 3(5). That means that the guiding principles of the constitution cannot be changed except by regulations made by the Secretary of State. However, if Parliament must be invoked to change the guiding principlesI argue that it should bethen surely it should be invoked to establish them. The precedent is dangerous, because, as I understand it, the Minister is saying, What I say goes, and if you want to contradict me, you must change the law. Where would we be if, for instance, Justice Ministers operated in a similar way? It might be right to debate this when we come to that clause, but will the Minister confirm that regulations made under clause 3(5) will be made under the negative resolution procedure? And will he tell us whether the Delegated Powers and Regulatory Reform Committee has advised on that power?
Government Back Benchers should not pass over that question lightly. They know that the guiding principles set out in the constitution are not the excellent principles of the NHS plan, which takes us back a good 10 years. Those are the principles that we have argued should be put forward as part of the constitution and which were implemented before the Prime Minister came up with his proposals.
If one compares the constitution with the principles in the NHS plan, the redaction of those principles was undertaken by the current Secretary of State for Health, who was a Health Minister back in 2006-07. Government Members know that that redaction, which the current Secretary of State was instrumental in ensuring took place, removed the key principle that
Public funds for healthcare will be devoted solely to NHS patients.
Should Parliament not have a say in that?
At the heart of the amendments lies the question of what is a constitution. Is it something which, in regard to a public body, or even a body which predominantly serves the publicthe statutes of universities and Royal Colleges come to mindshould have some statutory democratic oversight of its content, even through a body such as the Privy Council, although I have to confess that that example does not necessarily help my argument? Or is it simply a useful noun that can be put at the head of a piece of paper, so that the Government of the day can get some relatively easy headlines, but which remains ontologically meaningless?
The question is a moot one, given the Prime Ministers statement last week that he favours a written constitution for the country. So what precedents will we set as a Committee if we say that this House is perfectly content with constitutions that are solely the product of the Executive rather than of the legislature? Lest anyone think that the comparison is spurious, at a little over 3,000 words this NHS constitution is three quarters of the length of the original US constitution. That comparison was made by none other than Lord Naseby in the other place.
Then there is the further question of precedent-setting, which is why these amendments are so fundamental to the whole tenor of this part of the Bill. The last time the Government included a document of constitutional importance in legislation without giving either House the opportunity to debate and amend it, the then Minister, the right hon. Member for Leicester, East (Keith Vaz), told the House that the document had all the legal force of The Beano. The document was the European charter of fundamental rights. In 2005, it became clear that it was being referred to by the European Court of Justice in its judgments, but it is not yet justiciable in England and Wales within our jurisdiction pertaining to that part of the law. The rulings of the European Court of Justice are legally binding on England and Wales, and in Scotland and Northern Ireland, and thus it bites. That document is part of the Lisbon treaty, which the Government keep reminding us that they support, but which they are not prepared to give the country a referendum to endorse.
Turning to justiciability, if the constitution is meant to have some real effect, then one might envisage that, initially, people would be encouraged, even excited, by the prospect. They now have a means by which they can seek to enforce rights on access to, and the quality and type of, healthcare. Even if it can be argued that it does not go that far, that it does not actually create entitlements and that what is in place is already enshrined in statute, there is an issue about whether this is going to give rise to justiciability for what is known in the lawthe Minister is a highly-reputed, qualified lawyer, so he will understand the importance of thisas remedy in equity. That involves things such as injunctive relief and any of the other specific enforcement processes that are possible by way of reference.
Of course, there is a special species of legal action, which is particularly known to the public sector the question of judicial review. That relates to whether the constitution and the way in which it has been framed in the legislation will give rise to the opportunity for litigants to pray it in aid in support of any kind of judicial review of ministerial or other public office decisions. That leads to the question whether there would be not only injunctive relief, but any kind of compensatory provision for those enforced to take action that they did not wish to take, or to have to correct an action or inaction that they have found was not part of the administrative process that they should have adopted.

Mike O'Brien: I want to be clear on the hon. Gentlemans position. Is he saying the constitution should be fully justiciable or not?

Stephen O'Brien: My first question is whether doing what is proposed makes this a justiciable document, and if fact and precedence give rise to that. This point is relative to another amendment in a later group, but what we have said in relation to the type of constitution that we wish to put in place is that such matters are covered by legislation. I suspect that the Minister will seek to pray in aid that point in any defence that he wants to make against justiciability, but the question will arise that by virtue of the way in which this is being done, will it give rise to injunctive relief, particularly if it is done through delegated powers? That is a question of law and fact rather than of desire.
I am not trying to pass an opinion on merit. I am trying to establish whether this gives rise to justiciability. It is therefore not an advocacy position but more a question of whether the law under discussion creates the type of opportunity at law which is intended or not. That is what I am trying to tease out.

Mike O'Brien: I understand that the hon. Gentleman is asking me what the Governments position is on the extent to which the law may intervene in relation to these clauses. I am seeking to ascertain the Oppositions view on whether other laws should intervene in relation to the constitution and whether it is a Conservative position that it should be justiciable.

Stephen O'Brien: We are in grave danger of getting into lawyers banter, which is the most polite way of putting it.
The Minister should be careful not to press me on the Oppositions wishes. It is the Government who are proposing this law, not us. What they are doing is not that far away from what we would wish to do, which is to enshrine the core values and principles of the NHS into law. In that case, there would be a real sense that they have impact and, through the provisions in the Bill, some degree of fungibility as time moves on depending on circumstances changing as to whether there will be a proposal. We have some points on that to which we will return at a later stage.
The issue is not whether I want the constitution to be justiciable, because the question is whether rights to healthcare, for example, are capable of being enforced or made available as a matter of other legislation. The point is to find out what the constitution is establishing. I am concerned that the way it has been drafted and incorporated makes it justiciable from the point of view of injunctive reliefa remedy in equity under lawor whether it gives rise to enforcement action in terms of rights and entitlement on the part of patients. The honest truth is that I do not know the answer.
I am very conscious of the precedent set by the former Minister, the right hon. Member for Leicester, East, in relation to the charter of fundamental rights, when, having described it as having no more force than The Beano, he eventually had to concede, after discussion with the former Attorney-General Lord Goldsmith, that, having started from that position, it had much more force than The Beano, because it was something on which those who were advocating cases in court could seek to assert gave rise to a presumption of a right, which has since been repeated by judges in judgments handed down from the European Court of Justice. It is by that means that it has been found to be justiciableby biting on an English or Welsh citizen within that jurisdiction and, separately, in the Scottish courts and in the courts in Northern Ireland. That is my point and while it would be nice for us to have a lawyers indulgence about these matters, we need to be clear that this proposed law in this Bill may or may not give rise to justiciability at the points that I have just outlined. Having sought to take me well off my script, I hope that that has been of some help.

Edward O'Hara: Order. I have been listening carefully. It is important to establish these principles early on, but I wonder whether, having expatiated so well on them in discussion on the first group of amendments, it will be necessary to expatiate so much on clause stand part.

Stephen O'Brien: Not only is that extremely welcome advice, but I had no intention of getting into this matter in the debate on clause stand part. I want to tease it all out at the outset, otherwise we will simply suspend an argument that needs to be had. I hope that the Minister will guarantee that the constitution is not necessarily justiciable. If he insists on pressing me on the question on which he has intervened twice, my instinct is that we should not be designing something that is justiciable. That is where I would seek to err, in constance, I suspect, with the Minister, who might be looking not to make it justiciable. The question is, is it, rather than do we want it to be. Even if there is the remotest chance that it is justiciableas there must be, in my viewI think it incumbent on the Government to bring the substance of the constitution before the House.
Let me conclude on this group of amendments by mentioning that the regulatory impact assessment states that many of the principles
are not explicit or secured.
That is on page four of the RIA. Will the Minister explain what secured means in this context, and if not, will he write to me on that point? This first iteration of the constitution has not been debated or passed by both Houses of Parliament, which shows, despite all their rhetoric, what I would argue is a complete sidelining of Parliament by the Prime Minister and his Government. It is reflected in the legislation, which, as drafted, over-specifies and is inconsistent. Not to have this first iteration receive any Parliamentary scrutiny before it was published as a done-and-dusted deal sets a dangerous precedent for the constitutional debate that the Prime Minister has now set running and risks opening a legal can of worms in the future.
I have asked the Minister to justify the specificity here, bearing in mind that he will reject specificity elsewhere, to provide the Committee with analogous examples of such legislation, to substantiate the Prime Ministers rhetoric and retain power to Parliament, to justify how a closed signing ceremony in No. 10 can mean anything with regard to the legislation that we have before us and to justify the dangerous precedent set for national constitutional debates and as regards possible future justiciability. I have also at least asked Government Back Benchers whether they are content to abandon the principle that public funds for healthcare will be devoted solely to NHS patients. That is a very serious challenge, given that we are very clear that that should be included and have made that point repeatedly, including before the Government published their proposals. I look forward to the Ministers response.

Sandra Gidley: I add my welcome to you to the Chair, Mr. OHara. I do not want to prolong the debate too much further. I support the point that there may not need to be date specificity in the Bill. I want to put forward a slightly different argument, because I sometimes worry when both Houses of Parliament always have to approve everything. The hon. Member for Eddisbury has probably not paid sufficient regard to the fact that a great deal of work went into involving the public and various patient groups in forming the constitution. It is a credit to some of the organisations involved in that work that nobody is now beating a path to our doors to highlight problems with it. Sometimes, it behoves us as parliamentarians to relax a little. Do we have to be such control freaks about everything that we cannot allow NHS staff, and the people who use the NHS, to make these decisions?
My concern is that the hon. Gentlemans amendment provides greater potential for the constitution to become a political football in future. One accusation frequently levelled at the Government in recent years is that they do not let anything bed down. We see an initiative; everything is in place for a couple of years; everybody starts to get used to working under it; then everything changes. If you want a quick round of applause or a quick win at any NHS gathering, just suggest no change. Say, Lets have a period of stability, and although one might not get a standing ovation, one can almost guarantee a round of applause. Why, then, can we not relax a bit and let the constitution have a period for the public to get used to it, and for staff to get used to working under its principles and for them to control this?
To make a party political point, I am not quite sure how the hon. Gentlemans argument fits in with his partys stated aim of removing the Department of Health and politicians from controlling what happens in the health service. It seems completely counter to that train of thought. The Minister probably does not need to respond to the point, but I felt that there was an alternative way to look at this set of amendments.

Mike O'Brien: The hon. Member for Romsey is right. The NHS constitution is the result of widespread consultation with various stakeholders in the health service. Those stakeholders include not only employees, doctors, nurses and patients groups, but a whole range of organisations, which have come together to set out their view on what should be in the NHS constitution. As a result, the document has been brought forward. It is primarily declaratory, in that it sets out the broad principles of the NHS. In terms of its legality, it produces no new areas of legal intervention or causes of action that do not already exist. In other words, it declares the current law broadly as it exists, but brings it together in one document, the NHS constitution, which sets out precisely what all the various areas of law have already done.
It is right, as the Conservative spokesman, the hon. Member for Eddisbury, has said, that we do not want to see a document that causes large-scale, new legal action. We already have enough litigation going on in relation to the NHS not to want to contribute significantly to that, so the extent to which this is justiciable is important. Perhaps I might deal with that first. We needed to take a balanced view on whether we want a document that is merely declaratory in a general sense or a proper constitution which is fully justiciable and legally enforceable that people can use in court action.
A balance needed to be struck between the extremes of something which was virtually irrelevant and something which was so relevant it could probably take over the running of the health service itself and cause the courts to be massively involved. We need to avoid both extremes. We have sought therefore to strike a balance with a document which declares what the law is, and which sets out broadly the principles and objectives of the NHS but does not create a series of new causes of action.
The hon. Member for Eddisbury asks if it is justiciable. It can be referred to in relation to court cases. It can be prayed in aid, but it does not of itself create any new cause of action. Therefore it should not produce a whole series of new areas of law or causes of action which will produce a lawyers charter. We wanted to avoid, and we believe we have succeeded in avoiding, the creation of a lawyers charter. As both the hon. Gentleman and I are lawyers, I am sure he will be delighted by that outcome.

Stephen O'Brien: I have not practised for 20 years.

Mike O'Brien: I have not practised for about 15 years, so we are probably both pleased that we have not created an opportunity for lawyers to run rampant in the health service. We have, however, created a declaration of where the law is so that people can see what rights they have, what the objectives of the NHS are and also ensure that they have things that can be referred to in courts cases but which do not produce new court cases. In relation to the hon. Gentlemans view about injunctive relief and some of the equitable remedies and judicial review, it is the case that the document can be referred to. I am not sure it will add a great deal to any case, but it could be brought into a case as a result of an action and referred to by the courts. The courts may therefore give effect to some of its provisions by way of injunction, but only if there is a cause of action already in existence today.

Stephen O'Brien: I understand both the Ministers intent and what he believes has been achieved. If I understood him correctly, he said in effect this is a consolidation-type approach. This consolidates existing law; it does not create any new causes of action. Whether or not as a result, it becomes the source of that law or whether the previous legal provisions will continue to be cited in any legal action is not completely clear. Providing no new law has been created, that may be, to use a lawyers phrase, otiose.
If something is absent from the current law, as a core principle framed in the constitution, it prompts a question about the use of NHS money for NHS patients. I suspect that the Minister may be coming on to that, but it may be one of the tests as to whether this is truly declaratory or whether it will define the range of issues which are currently covered by the law and can be justiciable.

Mike O'Brien: To finish the point in relation to the justiciability of the constitution, I would not necessarily use the word consolidation. The constitution declares what already exists, rather than consolidates it. It does not bring legislation from other Acts into this measure, which is what is normally referred to as consolidation. They remain in the other Acts. This measure refers to other pieces of legislation and declares in a document, which it will be possible to refer to, what those pieces of legislation amount to and what their effect is. It does not create a new cause of action.
On public funds, our view is that they will be used only for the benefit of NHS patients. It is certainly not our wish that they should be otherwise used. However, there is a legal point. In relation to some NHS facilities there is a charge. A contribution must be made by the patient. Prescriptions are the obvious example. In those cases, we need to avoid the view that NHS money can exclusively be used for a particular purpose, because it may be a purpose for which there is a charge. In the case of a prescription, for example, there is a contribution from the patient and there is a contribution from the NHS. That is not exclusive, so our view is that NHS money should be for the use of NHS patients. That is the approach that we are taking. As for the legal point made by the hon. Gentleman, he would be wrong to say that a level of exclusivity should be brought into the legislation, as that is likely to raise questions about whether there can be joint funding by the patient and the NHS for a particular item, such as a drug on prescription. We will come back to that later in our discussion.

Stephen O'Brien: As the Minister said, we will probably return to that in future. He raised a question about prescriptions, and I accept that in that case there is a charge, which is why there is a caveat in the process. How does that relate to the recent decision by the previous Secretary of State concerning the inquiry and the Governments policy on top-up payments?

Mike O'Brien: We are venturing into a discussion that we shall be having later today. As far as the Government are concerned, NHS money will be applied to NHS patients. There will be circumstances, such as with prescriptions, in which some funding is contributed by the patient, so we need to ensure that the law enables that to happen and does not create an artificial barrier. The core principle of the NHSthat it is funded by the taxpayer to ensure that the provision of healthcare is available when it is needed, sometimes with a charge, but more often withoutmust remain intact. We have not announced anything that would undermine that principle.
Turning to other points that have been made, the hon. Gentleman made a broad political point about the Prime Minister and Parliament. We could all wax eloquent on that, but perhaps, Mr. OHara, you would restrain a general debate at this stage. I will avoid that eventuality, except to say that the Government have brought the NHS constitution before Parliament and we are now debating it; Parliament, therefore, has the opportunity to discuss these issues. As for the question of the date, we have received legal advice that the constitution needs to be clearly defined, which is why we have referred to the date on which it was published21 January 2009. The hon. Member for Eddisbury wants to remove that reference, but if the original constitution was not identified with sufficient clarity, confusion could arise as to which document was being referred to and being revised.
We have referred to the date primarily for reasons of clarity, to pin down the exact document. The issue is how we ensure that there is clarity about the document. There are a number of ways in which that could be done, but our draftsman chose to take this approach. It could have been published as a Command Paper and referred to as such there are a number of ways in which these things have been done in the past. The document was published before the Bill, so we took the view that it would be better to refer to it simply with a particular date. It could then be amended appropriately. A date is also given in the Bill that is relevant to other aspects of provisions dealing with the constitution. Any revision of the document must take place under clauses 3 and 4, which require a particular date for the three-yearly and ten-yearly reviews that need to take place.

Michael Penning: Can I take the Minister back to the other methodologies that could be used to introduce such a document? By bringing this document out and launching it in that way, there was a presumption that the House would agree to it entirely. Otherwise, he would have introduced a White Paper, which we could have amended in the usual way. What is so difficult to understand is that if Parliament is, quite rightly, debating it today, why was it brought out in its finished form? I know the Minister said that it could be amended, but the document, which was published as part of the constitution, would have to be completely pulped, whereas if it had been introduced through another method, perhaps as a White Paper, that would be the correct way for Parliament to scrutinise it. We could then have introduced the actual legislation, rather than publishing something which is highly likely to be defunct after this exercise in Committee.

Mike O'Brien: In a sense, Parliament has already debated much of this, because if a legal cause of action arises as a result of a statute, Parliament will have passed that statute. All that the constitution does is, in effect, to declare the law that currently exists and bring it together in a clearer, more convenient way for the staff of the NHS, for those who contract with it and for patients.
Previously, such a measure did not exist; it is a declaratory document, saying what Parliament has already decided and what the courts have already decided by way of common law. It is therefore useful in itself and can be referred to in the courts, once the legislation is passed. However, we are not creating a whole series of new avenues in which the law can intrude. As for the question of whether Parliament needs to debate the measure, it is effectively doing so. On the issue of whether Parliament is pretending that this something which it is not, we have not sought to do so. We have made it clear that this is a declaratory document, setting out for those who use the NHS exactly what its constitution is.
There has been no sidelining of Parliament, which has a role in determining the legislation underpinning the constitutionthat is, most of the principles as they are rooted in legislation, and each of the rights. In addition, Parliament has a role in approving any changes to the principles of the constitution. We listened to debates in the other place, and responded by obliging the Secretary of State to amend the principles via regulation. In doing so, we have ensured that no Government can change the guiding principles of the NHS without parliamentary scrutiny.
It is important to remember that the final constitution was not dreamt up in Whitehall; it is, as the hon. Member for Romsey has said, the result of extensive research and full consultation with patients, the public and NHS staff, and it reflects what matters to them. In summary, Parliament has already had a say on the legislation underpinning the constitution, and no changes to the principles that it sets out can be made without parliamentary approval. There are several provisions in the Bill obliging the Secretary of State to consult patients, staff and other affected bodiesthat is, the people who have created this constitutionbefore any changes can be made.
I therefore hope that I have covered most of the points that have been raised, and I hope that the hon. Gentleman will withdraw his amendment. However, he asked, too, about clause 3(5), and I can confirm that the regulations to which it refers are subject to the negative resolution procedure. The Delegated Powers and Regulatory Reform Committee advised officials that it did not need to see the new power. I understand that that was because of the change made in the other place. It was agreed that it did not have to be referred at that stage, so it did not have to opine on it. I gather that the Delegated Powers and Regulatory Reform Committee was happy with the original drafting of the Bill, and did not express any concerns. Because of that concession in the other place, that is how the matter was dealt with.
The hon. Gentleman asked whether other Acts immediately came to mind as measures in which dates were set. I cannot think of another such measure, but I have explained why, the Bill gives clarity to later provisions. We refer to a particular series of reviews that need to take place, and it is useful to have the date in the legislation. He asked me to write to him about the word secured, and I am happy to do so.

Edward O'Hara: Order. Reference to later proposals is simply a reference and does not prejudice later debate.

Lynda Waltho: I wish to declare that my husband, Councillor Stephen Waltho, is a governing member of the Dudley Group of Hospitals NHS Trust.

Edward O'Hara: That is noted on the record.

John Horam: I am interested to hear what the Minister said about the procedure and process that went into the formulation of the constitution published by the Secretary of State in January 2009. He explained that there had been a long process involving all kinds of stakeholders and so on. Did the resulting declaratory constitution, which he has explained, lead to no changes? Was it simply a clearer summary of the existing situation with no changes, or were there any revisions of words, thoughts or principles in the new constitution that were not in the existing legal situation?
If we were trying to get a clear summary of the situation, it would be surprising if there was no change at all in what had gone before. If there is any change that could be seen as a change by a lawyerI am not a lawyereven if it was only a subtle change or a change of emphasis rather than a change of fundamental principles, surely that would mean there would be a new element that might be justiciable. Is there a contradiction, therefore, given the Ministers assertion that there is nothing new, and nothing that could be newly justiciable? That is unlikely to be the case if the result of this comprehensive process is that there will be some new perception of the arrangements for the National Health Service? Could he enlighten me on that point?

Mike O'Brien: I am happy to say that three new rights were set out clearly in the constitution as a result of the consultation. One was in relation to vaccines, another in relation to choice and another in relation to rational decisions on the funding of drugs. Each has directions and regulations underpinning it, so in effect other regulations and directions underpin those rights. As a result of the consultation, however, I am informed that the proposals were altered, and brought into the constitutional set-up so that they could become part of the way in which the NHS is run under the constitution. As a result of that consultation, yes, there were changes. The three changes I referred to were already in law but have now been brought into the constitution following the consultation.
The hon. Gentleman asks whether the creation of this new elementthe constitutioncreates a level of justiciability that did not previously exist. He suggests that surely it must. To some extent he is right, in the sense that it may be referred to in court, but I cannot guarantee to him that as a result of those references, some case law might not arise that draws a particular point from the constitutional document that has been referred to in a court case and which may not at some point, as a result of the operation of the common law and the courts, produce a new way of looking at the NHS and a new area of law. We do not know that. Any time we make legislation we are to some extent at the mercy of the judges to see how that legislation operates in practice. Parliament would have to look at the measure again in the future to see whether it approves of the way it has been dealt with.
The hon. Gentleman is right to some extent but not wholly right: yes, the document can be referred to and yes, it may lead to affecting the view of judges in a particular case. However, a new cause of action cannot arise as a result of this constitution, because it is based on causes of action that exist now. Anyone who brings a case now would have to have a cause of action that arises now. Under existing law, they would not get one merely from the constitution. However, when the matter goes to court, can it be referred to? Yes, it can, because it is in law. I hope that answers the points, but I am happy to give way.

John Horam: My knowledge of the law is based on watching Judge John Deed, which may be unusual, although the series is rather interesting, as a matter of fact, and my wife thinks it is fantastic.
As a complete non-lawyer, I am still puzzled by the fact that something can be referred to in a casepresumably a lawyer refers to something because it helps his case, and is a point in its favourand will be used and given some weight in the law courts, even though it may not be technically judiciable in the sense a lawyer might understand. It will none the less be used to some extent, which creates an area of uncertainty, as I think the Minister has admitted, that may in the future throw up case law that may well change the law. Is that the Ministers understanding?

Mike O'Brien: I would not describe it as an area of uncertainty, in the sense that judges always say they merely declare the law as it exists, not as they might want it to beunless they are the late Lord Denning. It is the case, however, that judges in practice have to look at new circumstances and the relation of the law to those new circumstances. Therefore, they will, in effect, create law, so whether or not that is an area of uncertainty, the whole aim of the law is to create certainty, so I dispute the hon. Gentlemans wording. If he is asking whether this, at some stage in the future, could produce changes in the law and the way in which we look at the NHS, the answer is yes. Does it create a new area that could produce a case that could not be taken now? No. That is an important distinction, and probably his Front Benchers and the Government are broadly in the same place in terms of what we would like to seethat we have a constitution that is clear, which people can understand, which declares what their rights are, but does not create a lawyers charter enabling a whole series of new interventions by the law in the NHS that do not exist today.

Stephen O'Brien: That last set of exchanges was particularly helpful, and was useful in setting the context to widen slightly our discussion beyond the immediate amendment, which is on the date-specificity of the document referred to in the proposed statute. The broader issue leads back to the judgment to be made on the amendment. The Minister has been very clear that it is the Governments intent to be declaratory. In his last set of interactions with my hon. Friend the Member for Orpington, he talked about there not being an area of uncertainty, but in the way he described it, it does carry the area of possibilityas it might be referred to in legal proceedingswithout creating new causes of action. I think I have understood him correctly in that analysis.
It may be some years before we go down this track, but in the course of any cases that come before the courts and in the precedent-setting, which is obviously in the nature of the law in this country under the common law, it will be interesting to see whether in a judgmentas both judges and legal academics look back on cases decided over the years with this law in place, in addition to all the other legislative provisions that give rise to the causes of action that, on the Ministers analysis, pre-exist this piece of legislationreference to the constitution in these legal provisions ends up being obiter dicta, not central to the decision made by the judge, or what is known in legal terms as ratio decidendi, a core stream of thinking that leads to the judgment and any remedy that is then imposed.
In many ways, we are discussing what may or may not turn out to be the legal journey that takes place from here. That is why the discussion has been important. We need to be absolutely clear thateven by the record of these proceedingsit will be possible to refer to this discussion were it to become important whether or not a new legal right has been created. It is clear that the Minister has asserted the Governments position that the provision is intended to be declaratory and, therefore, is not intended to create new legal rights or causes of action. We must ensure that all that has been well heard and is on the record.
I remain concerned about the date specificity, although not because the Minister gave a particularly weak answer. His justification was that referring to a document by its date provided clarity. He could not immediately call to mind any other legislation that had taken that approach, although he said that it might have been done by reference to, say, a Command Paper. However, it strikes me that the difficulty is that if there is the potential for the provision to be something that is prayed in aid and referred to, it is extraordinary that, as a matter of reference, we do not continue to have a document that is referred to as an extant document of the constitution, which is what the cumulative attempt of the Bill intends to carry. Any extant NHS constitution, however, is not seen to have been something that has been approved by both Houses of Parliament. The two amendments go togetherthe substantive one is amendment 2but to make the point emphatic, and to test the opinion of the House, I will be content to divide on just amendment 1, which is the first of the group.

Question put, That the amendment be made.

The Committee divided: Ayes 5, Noes 8.

Question accordingly negatived.

Question proposed, That the clause stand part of the Bill.

Mike O'Brien: I am conscious of your strictures, Mr. OHara.

Question put and agreed to.

Clause 1 accordingly ordered to stand part of the Bill.

Clause 2

duty to have regard to nhs constitution

Stephen O'Brien: I beg to move amendment 4, in clause 2, page 1, line 16, after to, insert
the core principles of the NHS listed in subsection (3) and.

Edward O'Hara: With this it will be convenient to discuss amendment 5, in clause 2, page 2, line 8, at end insert
(3) The core principles of the NHS are that
(a) the NHS will provide a universal service for all based on clinical need, not ability to pay,
(b) the NHS will provide a comprehensive range of services,
(c) the NHS will shape its services around the needs and preferences of individual patients, their families and their carers,
(d) the NHS will respond to different needs of different populations,
(e) the NHS will work continuously to improve quality services and to minimise errors,
(f) the NHS will support and value its staff,
(g) public funds for healthcare will be devoted solely to NHS patients,
(h) the NHS will work together with others to ensure a seamless service for patients,
(i) the NHS will help keep people healthy and work to reduce health inequalities,
(j) the NHS will respect the confidentiality of individual patients and provide open access
to information about services, treatment and performance..
Amendment 6, in clause 2, line 8, at end insert
(3) The core principles of the NHS are that
(a) the NHS provides a comprehensive service, available to all,
(b) the access to NHS services is based on clinical need, not an individuals ability to pay,
(c) the NHS aspires to the highest standards of excellence and professionalism,
(d) NHS services must reflect the needs and preferences of patients, their families and their carers,
(e) the NHS works across organisational boundaries and in partnership with other organisations in the interest of patients, local communities and the wider population.
(f) the NHS is committed to providing best value for taxpayers money and the most effective, fair and sustainable use of finite resources,
(g) The NHS is accountable to the public, communities and patients that it serves..

Stephen O'Brien: Amendment 4 would add a duty for NHS bodies to have regard to the core principles of the NHS which would, by amendments 5 and 6, be enshrined within the legislation. Amendment 5 lists the core principles of the NHS according to its plan. Amendment 6 sets out the redacted core principles as they now appear in the NHS constitution.
There is a recurrent theme in the regulatory impact assessment, with phrases such as
The legislative duties reinforce the benefits of the Constitution, reducing the likelihood that these benefits will be eroded over time.
That is in paragraph 7 of the cover note. It also states:
The constitution should mitigate the risk of the erosion of core values.
It is unclear whether this is an adviser extending the assessments word count, or if it is a slightly unnecessary and unfortunate attempt to suggest that the core values of the NHS would be under threat in advance of a general election and another Government. We would certainly argue that this is unjustified.
It is clear that the Government themselves have been responsible for the erosion of, if not the values that lie behind the core principles, at least the core principles themselves. Nine years ago the NHS plan set out 10 NHS core principles, which were endorsed by 25 organisations representing both NHS staff associations and patient groups. In that intervening period, those have become increasingly well regarded, enforced and emphasised. They are good principles and the official Opposition are committed to enshrining those principles in legislation, hence amendment 5.
Unfortunately, the Government have chipped away at those core principles for the last nine years, which, inevitably, is a cause for concern. My right hon. Friend the Leader of the Opposition has consistently confirmed our commitment that, under any incoming Conservative Government, the NHS will continue to be a public service free at the point of need, with equality of access based on need, not ability to pay. I am keen that the Government should seek to support that.
In the December 2006 consultation on the core principles of the NHSwhich we have committed to enshrining in legislation and which were referred to during our debate on the previous group of amendmentsundertaken by the former Minister, now the Secretary of State for Health, the Government committed to the principle that
Public funds for healthcare will be devoted solely to NHS patients.
I heard what the Minister had to say and intervened on him in relation to his example of prescriptions. I wanted to ensure that we fully understood this in light of the Governments own review, the report received and the Governments reaction in relation to top-ups, which had caused great anxiety to patients and Members throughout the House, not least on the Governments Benches. This principle, which appears in paragraph (f) of amendment 6, remains notable by its absence. As a sub-point to principle 6I am glad to say that we had a hand in making this happenthe Government reintroduced the phrase:
Public funds for healthcare will be devoted solely to the benefit of the people that the NHS serves.
People that the NHS serves is, of course, a much less secure category than simply NHS patients. I am sure that will not be lost on hon. Members.
The original core principle 4, that the NHS will respond to different needs of different populationsin truth, communitieshas fallen off the agenda in such specific terms. It is important that we recognise that different communities and those with different genetic antecedents have different health needs. It is of particular concern that this original core principle of recognising the response required by the NHS for different needs in different communities has disappeared from the Governments stated position and agenda. I am not making a party political or contentious point, but it just happens to be at a time when all of us across the House need to join shoulder to shoulder in resisting anything that could give credence to some of the most appalling, outrageous and obnoxious electoral approaches of people who stand for a party such as the BNP, where they are looking for excuses to underpin their racist, class-based, anti-communities approach. I hope that the Government will consider rowing back from this area because the original core principle 4 needs to be looked at, particularly in the light of that political context, let alone the health context.
Extraordinarily, core principle 6,
that the NHS will support and value its staff
has been ditched without apparent replacement. I need hardly say more: it is just extraordinary. I will listen carefully to what the Minister has to say on that, because it seems to us to be an appalling omission.
The original core principle 9 specifically and explicitly addressed health inequalities. That phrase does not appear in the constitutions core principles. It may be simply to hide the Governments embarrassment over their failure, over time, to reduce health inequalities, but that remains a broader debate for another day and I can assure the Minister that we will continue to have that debate.
The Governments failure to secure compliance with the final core principle of the NHS plan, on confidentiality, has, I am sorry to say, become legendary. It is no surprise, but it is to the Governments shame that this, too, has fallen off the agenda. It is right that the impact assessment should be concerned about the ability of a Labour Government to chip away at the principles of our NHS. We have remained committed to them while the Government have consulted on them, through the NHS plan, have set up a new set for NHS Choices and now a new set in the constitution. It is precisely for this reason that the principles that were in the original NHS plan, as we have consistently proposed, ought to be in the Bill.
In a fit of generosity to the new Minister, I have included the core principles as laid out in the NHS constitution in amendment 6. If he is unable to support his Governments original proposals, by way of supporting amendment 5, the NHS plan core principles, I hope that he will at least be happy to accept what is proposed in amendment 6. I hope that sets the scene for this very important series of amendments.

Mike O'Brien: Amendments 5 and 6 place principles of the NHS in the Bill, with amendment 5 listing principles from the NHS plan published in 2000 and amendment 6 abbreviating the principles published in the NHS constitution. Amendment 4 would require the bodies listed in clause 2(2) to have regard to these principles.
Members of the Committee will be aware that clause 2 already sets out a requirement to have regard to the constitution. This requirement relates to the whole of the constitution, including its principles. It is therefore unnecessary to restate here the need to have regard to the principles.
We have not lost sight of some of the principles set out in the NHS plan, so I can reassure the hon. Gentleman that no principles from the NHS plan have gone missing from the constitution at all. We do not want that to happen. We engaged key stakeholders extensively when drawing up the constitution and the results of that work allowed us to refine the principles set out in the NHS plan. Where they do not appear as principles, they are reflected elsewhere in the constitution, either as pledges or as rights. For example, the principle around valuing staff is reflected throughout the constitution, in its pledges to staff and in the third principle, which sets out the importance of the education, training and development of staff.

Sandra Gidley: The Minister makes an interesting point, but I was very taken with the arguments of the hon. Member for Eddisbury. Is the Minister saying that the public have no regard to health inequalities? That seems to have been eroded from the original NHS plan.

Mike O'Brien: Health inequalities are certainly important and that is why we have an Equality Bill, which the House wanted to see introduced. Equalities, in health and in a range of other things, are part of the Governments wider agenda. I reassure the hon. Lady that the Government continue to believe that equality in the health service is enormously important. For the very reason that we are including the health service in the Equality Bill, I hope that she is reassured that that remains the case. Equally, the principle around public funds being devoted solely to NHS patients has not been lost. It has simply been stated differently in order to move away from the idea of people who use NHS services being classified as NHS patients. All those who use NHS services are not necessarily NHS patients. They may be using a service to get information and may not regard themselves as accessing an NHS service as a patient. They may merely be seeking to obtain information about how that service operates. They may be seeking to access it for all sorts of reasons, even to enter into a contract. A doctor seeking, for example, to work with the health service is not engaging as a patient; he is engaging as a doctor and therefore is in a different category. Some of the wording, therefore, has been changed. The sixth principle:
Public funds for healthcare will be devoted solely to the benefit of the people that the NHS serves,
is an important one.
The outcome of the review into top-up payments was that public funds can be used only for the benefit of NHS patients and not to subsidise private health care. Following the review, the Government clarified that NHS care should not be withdrawn when a patient wishes to purchase additional private care separately from their NHS care. There should not, however, be any mixing of publicly and privately funded care. That is an important point. We need to look at this in relation to other areas of the health service to be sure that that is properly recognised.
When we consulted on the draft constitution last summer, our consultation document specifically explained how each of the 10 NHS plan principles had been incorporated into the constitution. We now have a set of principles that, after full consultation, have the support of patients groups, the public and the staff. The large majority of respondents to the consultation thought the principles were articulated in broadly the right way. A large number of improvements were suggested and the final published version of the NHS constitution reflected these comments, as I have already indicated to the hon. Member for Eddisbury.
It is also important to remember why we have chosen not to include any of the NHS constitution in the Bill. As I have indicated, we do not want to create a lawyers charter. This is why a declaratory, not a legal document is important, and why we are cautious about following the route suggested by the hon. Gentleman. My concern is that we would be doing exactly what I thought we had agreed in the last debate we both wanted to avoid, which is to create a lawyers charter so that we create new routes into the NHS and we end up with judges determining NHS priorities rather than the NHS structures.
Enshrining the NHS principles in primary legislation sets them in stone until that legislation is changed. I am firmly of the view that the principles are enduring and it is certainly not my intention for them to change in any significant way, but I also believe we need a degree of flexibility as the NHS grows and evolves. These amendments do not allow for that flexibility. There is a range of new services and a range of new demands from patients and we need to be able to reflect that in a positive way.
We have listened to the Oppositions concerns on these points while the Bill was in another place and I believe we have reached a sensible, balanced position in relation to the constitution. As the Bill stands, it allows parliamentary scrutiny of any changes to the constitutions principles by addressing those changes in regulations, and they will therefore have to be brought before the House. This solution avoids the dangers of placing them in the Bill, which could lead to precisely the problems that I thought both the hon. Gentleman and I agreed we wanted to avoid.
Given my reassurances, I hope the hon. Gentleman will be able to withdraw his amendment.

John Horam: Will the Minister clarify my thinking about one particular aspect of this which is referred to in amendment 6, paragraph (g):
the NHS is accountable to the public, communities and patients that it serves.
He is familiar, as we all are, with our local involvement networks, which, on behalf of local communities, can scrutinise what is going on in primary care trusts or trust hospitals. Are their rights enshrined in the constitution and principles of the NHS or are they susceptible to a degree of local discussion? For example, do they have the right under the constitution to go to a board meeting, ask questions and receive the agenda beforehand? Equally, is it their right to inspect a hospital with 24 hours notice? I want to be clear whether this is laid down in the constitution or whether it is subject to any local discussion and negotiation.

Mike O'Brien: With regard to the rights of LINks, among other organisations, which we will be discussing later in relation to amendment 12, we have agreed in relation to any changes in the constitution to consult broadly, including organisations that represent patients. The rights of groups to visit a hospital, to access papers, to ensure that they are fully informed about what is happening in the NHS, do not need to be enshrined in the constitution. They arise as a result of other requirements, which are laid down in regulations and in guidance from the Department. A number of rights exist for doctors, nurses, patients organisations and other groups. They do not all have to be in the constitution.
The constitution is the skeleton structure on which other things have to be attached, rather than a document delineating all the rights that people may have. It is a broad declaration of principles. I hope that deals with the hon. Gentlemans concerns. Any rights that LINks, patients groups and other organisations may have will remain the same, to the extent that they may refer to the constitution and say to a PCT, Make sure you are complying with your own constitution. They will be able to do that, so there will some strengthening of rights, but there will be no new ability for organisations to claim rights that they do not currently have. I hope that deals with the point. We take the view that the legislation is properly drafted and I hope that hon. Members will be able to support it.

Andrew Turner: My problem lies with amendments 5 and 6. Which of those applies, or does neither apply? Subsection (3)(a) in amendment 5 states:
the NHS will provide a universal service for all based on clinical need, not ability to pay,
while subsection (3)(a) in amendment 6 states:
the NHS provides a comprehensive service, available to all.
Is the Minister saying he does not accept either because they are both wrong or that one of them is right and one is wrong? What is his understanding of these two amendments?

Mike O'Brien: All that appears to be happening here is that, with some minor adjustments, the Opposition seek to enshrine in the Bill issues that are set out broadly in the constitution. We do not want them in the Bill because that will produce an opportunity for litigation, which we do not want the NHS exposed to at this point.
It is not a matter of arguing broadly about the principles. There are some issues regarding the wording, which we will come on to in further amendments, but we believe that the NHS constitution sets out those principles adequately. The references in the legislation to the constitution give it enough declaratory effect without producing the problem of the lawyers charter, which we seek to avoid.

Michael Penning: I am not a lawyer. We have too many of them, but perhaps on this occasion we need some clarification. How is it a lawyers charter to have in the Bill that the NHS will provide a universal service based on clinical need, not on the ability to pay, or that the NHS provides a comprehensive service available to all? How is that a lawyers charter in a 21st-century NHS?

Mike O'Brien: If I was a lawyer acting for a patient who had to pay prescription charges, looking at the Bill, I might say, We have some core principles here. All universal services must be produced on the basis of clinical need, not the ability to pay, so under no circumstances should there be any prescription charges, and I will take that to court and argue it. The lawyers, in effect, would get a charterit is precisely the point that the hon. Gentleman raises. It is easy for a lawyer suddenly to decide that they will take a point on that.
If I was on the defence side, I would look at paragraph (f) in amendment 6, which states that
the NHS is committed to providing best value for taxpayers money and the most effective, fair and sustainable use of finite resources.
Therefore, on the other side, the NHS would argue, Lets balance out the principles set out in paragraph (a) with those set out in paragraph (f). We could have a nice, fine argument before a High Court. Indeed, we would undoubtedly take it to the Court of Appeal and the House of Lords to argue the difference in the balance on the face of the legislation and which of those paragraphs should have precedent. It would be great, a lawyers charter. Some lawyers would make a lot of money out of it. It would be very easy if it was on the face of the Bill. We want to avoid precisely that point. I hope that reassures the hon. Gentleman.

Michael Penning: Not in the slightest.

Mike O'Brien: The hon. Gentleman says, sotto voce, not in the slightest, but his colleague on the Front Bench argued that he did not want to create a lawyers charter either. My concern is that if that is put on the face of the Bill in that way, it is precisely what will happen. Lawyers will find it pretty easy to find a way of choosing a point here and ending up with judges making decisions that neither his Front Bench nor mine want to see made by judges, but rather, by the appropriate organisation in the NHS.

Stephen O'Brien: It is an interesting defence. The Minister has sought to use the example of prescription charges, particularly in that last exchange. It is quite timely to remind ourselves that, to some degree, that was rehearsed at some length in the other place. They came up with what the Minister described fairly as the concession that was made. It was to try to find the balance between declaratory, which encapsulates what has already gone before while not getting quite as far as using the word consolidationinevitably, all those words have legal consequences; they are not just words that are useful in an English dictionaryand avoiding new causes of action, which is where the issue about a lawyers charter comes from. It is not so much that one might succeed, but giving one a sufficient and credible cause of action to get something started is the actual area of concern.
There is a grave danger here that two professional lawyers will share too much, but I share the Ministers concern. But it was interesting when on Third Reading in the other place my noble Friend Earl Howe, as a result of the debate on that precise point, said:
The fear that some people had that an amendment of this kind might open the floodgates to litigation against the NHS was never one that I considered to be well founded. I still do not believe that. It would have validity if the scope of these amendments were to extend more widely than they doif, for example, they were to embrace specific rights. However, in so far as the guiding principles are already underpinned by existing primary legislation, there cannot reasonably be a fear that, by linking the constitution directly to the parliamentary process, we will be creating the potential for a lawyers charter. [Official Report, House of Lords, 12 May 2009; Vol. 710, c. 928.]
That was a fair point.
Reluctantly, therefore, the Minister may find himself in agreement with me in this debate, which was raised by my hon. Friend the Member for Orpington. Taking that logic, I have to say that I have some difficulty with the matter. The Minister has said that he is not worried that the original core principles 4, 6 and 9 have disappeared, as has the final core principle on confidentiality. He said that they do not need to be put in the Bill. Given the access to advice that the Minister, the Government and all their advisers have, they have said that they are confident that they are not creating a set of new legal rights or an opportunity for new causes of action. If this is truly declaratory, I cannot see why they are reluctant to put the NHS constitution in the Bill. If they did that, it would carry the one thing that we all want to see.
Parking the justiciability issue, which we have done to some degree, the other issue is that we would not want to see any amendment to the NHS constitution that is not highly explicit, highly visible and in response to a change of primary legislationthe underpinning legal rights would probably have to be done by primary legislation, otherwise they are not pre-existing legal rights. Therefore, there is a logic that drives us to say that we should have the constitution in the Bill because the principles would create no more legal rights but at the same time they would be as equal as pre-existing primary legislative legal rights. The prospect of change drove a former health Minister, Lord Warnerwho seemed to be the sinner who repentethto say:
Circumstances change and Governments have to respond to them. With the NHS now taking a very large chunk of the public finances, we have to be wise about not putting primary legislation on the books that unreasonably ties the hands of future Governments when dealing with the economic circumstances that they face.[Official Report, House of Lords, 23 February 2009; Vol. 708, c. GC9.]
That might almost be an argument for chipping away at the core principles when we face tough economic circumstances. However, we resisted that and said that we need the principles in the Bill so that there can be no diminution of the explicit requirement to change the NHS constitution, which we are trying to ensure is put in the Bill and in the right terms. When the hon. Member for Romsey touched on health inequalities, she got an interesting reply about the Equality Bill, which was not where the debate lay. Talking about health inequalities is more to do with access under the NHS and the fact that we need an egality of access right across the country, even with our devolved institutions. It has been difficult to square off the argument that the Minister prays in aid in order to resist the lawyers charter argument and to ensure that no new primary legislative sourced rights have been created and, at the same time, to resist putting this into primary legislation so that we can always be explicit if there was any change.

Mike O'Brien: It is the case that we wish to avoid creating a whole series of new courses of action, but the hon. Gentleman wants to include that in the Bill. After looking at the matter again, it is clear that that would give lawyers ample opportunities to take a point. If the hon. Gentleman were to do such a thing, how would he not create a new course of action by saying, in proposed new subsection (3)(c), that
the NHS aspires to the highest standards of excellence?
What does that mean? It is not underpinned in a current piece of legislation, and if that phrase were used, it would create a new piece of legislation. Will he explain to me, please, exactly what he means? He would be doing precisely what he wants to avoid. He would create a new course of action by putting in the words
the highest standards of excellence
when it is not a course of action, at present, but a mere declaration. Would he not be seeking to make it a new course of action?

Stephen O'Brien: The Minister raises an interesting example. In many ways, I am glad that he does so, because he gives me an opportunity to spell out the difference between amendments 5 and 6. He referred to amendment 6 and what would be subsection (3)(c), which is, in effect, a copy-and-paste job from the Governments set of core principles. He is saying that it would create a new area that is not underpinned by primary legislation. I ask for that to be taken in context with the argument that there is a separation between what is set out in the Governments proposed constitutional provisions and what is underpinned by primary legislation. Most importantly, however, amendment 5 would copy and paste in what was in the NHS plan, which my party has adopted as its official position. It includes the principles that the Government have had in their NHS plan, which they say have always been underpinned by legislative provision, not least because the equivalent provision is that
the NHS will shape its services around the needs and preferences of individual patients, their families.
Amendment 5 does not actually refer to the
highest standards of excellence and professionalism,
which is what the Minister read out. That is a different issue. I gave an example of writing in the different needs of different populations, as the hon. Member for Romsey picked up, to ensure that we can address health inequalities more explicitly.
The Ministers interesting points lead me to decide whether to press the amendment, unless he wants to intervene againI do not want to truncate the debate. Clearly, amendment 4 does not go into the substance of the matter, but amendments 5 and 6 do. To some degree, they are alternatives. I will not press amendment 6, but I shall press amendment 5 to a Division.

Edward O'Hara: That will come later.

Stephen O'Brien: I thought that I needed to give you notice at this point, Mr. OHara.

Edward O'Hara: You do indeed. Are you withdrawing amendment 4?

Stephen O'Brien: I will be happy not to press amendment 6 on the basis that I will get the opportunity to press amendment 5. I beg to ask leave to withdraw amendment 4.

Amendment, by leave, withdrawn.

Stephen O'Brien: I beg to move amendment 107, in clause 2, page 1, line 16, leave out have regard to and insert abide by.

Edward O'Hara: With this it will be convenient to discuss amendment 108, in clause 2, page 2, line 8, at end insert
(2A) The Secretary of State may issue guidance on criteria to be used to judge the delivery of the duty in subsection (1) above..

Stephen O'Brien: Amendment 107 is an attempt to tease out the phrase have regard to in the constitution and to replace it with abide bythat is not intended to sound like a hymn. In addition, amendment 108 seeks guidelines for assessing the delivery of the duty so that we may have something concrete against which to measure the effectiveness of the regard and the principles.
Let me be clear at the outset that I am not convinced that abide by is much better than have regard tothat might give the Minister a sense of victory. However, hon. Members must agree that either NHS bodies are bound by the constitution, and thus it has bite, or it enters the great panoply of guidance spewed forth from Richmond house on a daily basis to pause briefly, if at all, on its journey between the inbox and, one hopes, the recycling bin.
It is interesting to note that Lord Walton of Detchant stated in the upper House:
When we debated the Bill at Second Reading it was stressed, rightly so, that the NHS Constitution is not a code or a statute but a set of guidelines.[Official Report, House of Lords, 23 February 2009; Vol. 708, c. GC6.]
The challenge for hon. Members, in this debate, is to examine whether they think that that is adequate. If we are going to all this trouble to create an NHS constitution, we need to ask whether it is simply a restatement of the existing law, an aspirational or declaratory document, or nothing more than a set of guidelines. If it is only a set of guidelines, why, as we make our way through the Bill, are we going to take up quite a lot of time discussing the nature of the handbook, which is also statutorily provided?
There needs to be complete clarity from the Minister, who sought in our first debate to make it absolutely clear why the Government intend the constitution and the Bill to be declaratory. We also need continual clarity about the way in which all the documents interleave and interrelate, as well as about the degree to which they are things that may simply be referred to, even in court proceedings, or things about which people can say, I wish to rely upon them. The Government must have had a real intent in passing them. I, as a citizen of the United Kingdom, am looking to my own needs. They say that I can have an expectation as a result of the document, which parliamentarians took a long time discussing. They cant have just put it up for window-dressing purposes; they must have meant something by it, so what am I able enforce and claim?
What is therefore meant by have regard to? I suspect that the Minister, like many before him, will respond by saying that it is a well-established legal phrase. That might well be the case, but it has not stopped disputes on that particular legal phrase being brought forth. It is not, therefore, a phrase that carries the confidence of certainty. If anything, it is a phrase that has, dare I say it, given rise to a lawyers charter, which takes us back full circle to the previous set of amendments. The fact that we had an interesting final run-out on that previous group on the difference between the genesis of amendment 6 and that of amendment 5, and between the Governments thoughts today and their thoughts about the NHS plan 10 years ago, shows that we have to be very mindful of the intent behind the Governments words.
My noble Friend Earl Howe said in another place:
In Grand Committee, the Minister indicated in, I thought, a somewhat nonchalant way that there was a well established legal meaning to the phrase have regard to. The trouble is that he singularly failed to tell us what that meaning is.
In the majority of legislation in which the phrase is used, that which must be regarded is generally quite straightforward.
My noble Friend continued by pointing out:
the Local Government and Public Involvement in Health Act 2007 obliges a local authority to have regard to every local improvement target specified in a local area agreement. It is fairly obvious what a local authority should and should not do in compliance with that duty, as it is very specific.
That is the counter point to our argument about the specificity of a documents deep detail and whether one wants something to be fixed in stone or pinned down so that it can be referred to, or whether one wants a documents content to be a clear set of principles that might be introduced by primary legislation from time to time. My noble Friend continued:
The Healthcare Commission had a legal duty to have regard to government policy in exercising its functions. What this meant was very clear: in everything it did, the Healthcare Commission had to bear in mind the Governments priorities in the delivery of healthcare and, as far as possible, to build those priorities into the ordering of its work.[Official Report, House of Lords, 28 April 2009; Vol. 710, c. 157.]
Local improvement targets are fixed, and although Government policy is less so, it is still made clear through guidance, directions and other publications. The principles of the NHS constitution are, as has just been argued, somewhat more nebulous and unspecific; they are values and principles. What, therefore, does it mean to have regard to a set of values or principles?
We must also look at who is doing the regarding. Although the NHS organisations listed in clause 2(2) are legally constituted entities, it is presumably their boards, not their staff, who are bound by the duty to have regard to, which is the somewhat difficult and odd situation that Lord Darzi failed to clarify in the upper House. I will therefore be grateful if the Minister will clarify that point. Will the duty to have regard to be included in the employment contracts of current and future staff? What power is there to sack a member of staff who fails to have regard to the constitution, and how will the employer enforce it?
The Departments website states:
Subject to parliamentary approval, all NHS bodies, and private and third-sector providers supplying NHS services in England will be required by law to take account of the Constitution in their decisions and actions.
Why does the Departments website use the phrase take account of when that is not in the Bill, but have regard to is? How is taking account different from having regard to? Does the latter mean, I have taken a look at it? Does taking account of it mean, I have taken account of it, and have taken into account all, some or indeed none of it, and I am prepared to justify my actions? There is a genuine question as to why such an inconsistency should have arisen on the Departments website.
That point is a nod back to our discussion on justiciability. I suspect that a judge would have some fun when deciding what was meant by having regard to. People might not associate the word fun with the courts, but there is a certain intellectual attraction to debating the point. We therefore have to ask what legal force this would have in a case brought against the NHS. Will the Minister confirm that it has the legal force of The Beanothat was the aspect of justiciability raised by his former ministerial colleague, the right hon. Member for Leicester, East, who is now the Chairman of the Select Committee on Home Affairs? Another way of testing it would be to ask what legal force it would have in a judicial review.
Most important, as the Minister will realise, is the fact that this has a major effect on complaints, which we were not allowed to discuss when debating the Bill that became the Health and Social Care Act 2008. The hon. Member for Romsey will recall that a series of concerns arose as a result of the demise of the Commission for Social Care Inspection, the Mental Health Act Commission and the Healthcare Commission about what would happen to complaints. We were told that all complaints would have to go the Parliamentary and Health Service Ombudsman, and that is so.
The question on have regard to remains completely unclarified. We are still concerned about the ability to make complaints about the substance, the absence, or the inappropriateness of health or social care treatment for individuals. At the moment, referrals to an ombudsman tend to be only on matters of maladministration, which is familiar to us all. The question then arises of what the phrase have regard to means, especially in the context of the recent report by the Parliamentary and Health Service Ombudsman. I understand that an ombudsman can order any remedy considered appropriate, but such orders are no more than recommendations, as we found most recently with the extraordinary experience of the Parliamentary and Health Ombudsman having to issue a second report on Equitable Life, after the recommendations in her first report were not acted upon and she could not enforce them. It is fair at this point for us to raise the question of what is meant by have regard to in relation to the complaints procedure envisaged by the Government for health and social care.
I also query why bodies should have regard to only their NHS functions, and what those NHS functions are. I know that my hon. Friend the Member for Tiverton and Honiton will discuss at some length the questions on foundations trusts arising from the Bill. Does it mean that if foundation trusts provide private care, they do not need to adhere to those principles? Is that within or without the term NHS functions? What about air ambulances, whose work, which is valued by all, is often funded totally by charitable donations? Those who have air ambulances in their constituencies spend a lot of time ensuring that people are keen to support them; we do our best to encourage such altruism, as it keeps those vital services going. The work of the air ambulance is interwoven with that of the NHS. Does what they do form part of the NHS function or not? Hospices are another group that works as closely as possible alongside the NHS. I have good reason to know that, as my wife is a nurse in a local hospice. Will we have a situation in which an NHS-funded patient in a hospice bed will have to be cared for with regard to the constitution, but a charitably funded patient in the next bed will not?
Furthermore, clause 2(3) notes that an NHS function is
any function under an enactment
a wonderful phrase to get a certain type of politician going. Why is the phrase under an enactment there at all? The provision would seem to be effective if it read
any function...concerned with, or connected to, the provision, commissioning or regulation of NHS services.
The phrase under an enactment is limited to the statutory behaviour of the NHS only. Will the Minister confirm whether everything that the NHS does is based wholly on statute? For example, I assume that the NHS mechanic servicing an ambulance is not doing so statutorily, although I thought of that example late last night, so it might not be watertight. What are the Government trying to include or, more particularly, exclude with that phrase? It must be deliberate or it would not be in the Bill, so there must be an intention behind it.
Members of the Committee will no doubt have received, and maybe read, the British Medical Association briefing on the Bill, which I have to hand. It calls for further clarification on the duty:
It is not clear what this duty entails and what standard or uniform criteria will be used to judge whether or not relevant bodies have acted adequately in this regard. A clear indication is needed of the mechanism that would enable challenge of an organisations behaviour if it was found not have upheld this duty.
I dare say that the Minister has seen that submission, and I hope that he has an answer to that point.
What guarantees can the Minister give that NHS organisations will not simply badge up what they are already doing, creating a new layer of bureaucracy but no new practices, to demonstrate a spurious regard? The Minister will have to give guarantees on quality accounts in a similar fashion at a later stage. How can a right be a right unless it is unassailably asserted? What would happen if the Government had only to have regard to a free press, to universal suffrage, to property and to privacy? Those analogies make the point strongly. This is perhaps the best measure: what does the Minister expect introducing the constitution to change?

Sandra Gidley: I welcome the amendments, because they go to the heart of one of the problems with the Bill and the status of the constitution. I mentioned earlier that a lot of work and consultation went into the preparation of the constitution, but the whole idea is doomed if the public do not have faith in the documents, and there are early examples of that. The constitution lacks clarity about how patients get rights. It is not just me who says that. Lord Darzis report, High Quality Care for All, says:
For the Constitution to be meaningful it must have bite, with means for enforcement and redress, not just warm words or aspirations.
My strong feeling is that we have warm words or aspirations and they can only take us so far. We need a framework that people can understand, so they cannot be fobbed off easily. When a patient brings any sort of complaint, they usually do so with some reluctance, because they fear reprisals. I always think that that is a misplaced fear, but that is what constituents say to us when raising concerns about hospital practices without wanting to make a fuss.
I am not sure where the buck stops on some of these matters. Just to give a simple example, one of the aspirations of the constitution is
to ensure that services are provided in a clean and safe environment that is fit for purpose, based on national best practice.
So, in a hypothetical case, what if a patient developed an infection and there were poor hygiene practice relating to the same patient in a wardthose two things may not be connected or it may be difficult to establish a linkbut, on examination, the NHS trust was found to have fairly robust policies in place and this was a one-off event? Has the trust then discharged its duty by saying that it has policies and checks in place, but that those were missed on this one occasion, or is the buck passed down to the individual in charge at ward level, who should, perhaps, had greater responsibility for noticing such a problem? Or does the hapless cleaner get the blame? Where does the buck stop?
There is quite a lot of wriggle room in the document. I believe that the hon. Member for Eddisbury seeks more clarity and a tightening up.

Mike O'Brien: I am listening carefully to what the hon. Lady is saying. However, when talking about where the buck stops, I am not sure whether she is asking me where the liability in relation to legal case lies or where the responsibility lies in relation to the obligationsthe dutyon a trust or another organisation. Obviously, the responsibility to apply the constitution lies with the trust, but the trust may not be responsible for a dereliction by an individual member of staff. Nevertheless, the trust may be liable, even though it is not responsible, for any damage that may result to an individual patient. So there is a distinction between liability and responsibility. The hon. Lady is talking more generally, and I am not entirely sure which she is asking me about.

Sandra Gidley: I was not going down the liability road at this stage. Patients must have faith in the constitution. They may look at their handbook, realise that certain things are supposed to happen and complain to the trust, at which point the trust can easily say, Weve had regard to this aspect of the constitution. Weve got policies in place. It was a failure by a member of staff. That weakens the document considerably, because there is not really a right to redress and there is no aspiration to learn from the failures of the system. It seems that the trusts can, as long as they have all the right bits of paper, quite easily wriggle out of responsibility with regard to delivering what is in the constitution. We could spend all day thinking up similar examples, but I was merely trying to qualify where the buck stops and who had responsibility where.
A simpler answer would be to support amendment 108, under which the Secretary of State could issue guidance on this matter. I wonder whether this potential provision could be reviewed in some way in future, because although the Secretary of State may feel that he does not need it now, if there are problems with the constitution at a later date, it would be a shame to have missed an opportunity to provide a remedy.

Mike O'Brien: Committee members have raised a number of important points during this debate. We all want the constitution to have a meaningful, positive effect, so that it ensures that patients, and anyone who deals with the NHS, whether as a contractor or in any other role, know where they stand when they go into a hospital or use NHS facilities. However, we also want to ensure that while it has some practical effect, it does not create problems for the NHS that do not currently exist.
We have listened carefully to the messages that came out of the extensive consultation and engagement that we conducted as we drew up the draft constitution. A consistent message was that the constitution should be used to bring about cultural change in the NHS. It is seen as a way of getting away from the idea of rival interests or a transactional relationship between staff and patients. It is about having a framework document that will set a sense of direction and a clear vision for the way in which the NHS is to go forward. That was reinforced by the constitutional advisory forum, a body of leading stakeholders who oversaw the consultation, which advised the Secretary of State in its report against top-down performance management of the constitution. We therefore do not believe that we should enforce compliance with the constitution to the letter.

Sandra Gidley: The Ministers interpretation of top-down is interesting, because we are talking not about minutiae, but about a framework for checking that due regard has been taken of the constitution at all levels. I agree that too much detail would be bad, but surely we need more than we have.

Mike O'Brien: The NHS has a plethora of rules, regulations and statutory obligations that guide it and give substance to the way in which it operates, but the aim of the constitution is not to add to those significantly. We seek to frame all that so that patients, staff and those who deal with the NHS know what the organisation is about. What we are discussing is, therefore, a framework, and not a consolidation of all the NHSs obligations, but that does not mean that the constitution has no bite.
The words have regard to have meaning and are used in other legislation. The Health and Social Care Act 2008 lists matters that the Care Quality Commission must have regard to. Section 4(2) states:
In performing its functions the Commission must also have regard to such aspects of government policy as the Secretary of State may direct.
The chapter entitled, Supervision of management and use of controlled drugs, in the Health Act 2006 states:
Designated bodies and responsible bodies must have regard to any guidance under this section in exercising any functions to which the guidance relates.
As has been said in the other place, there is a long legal lineage to those words. In a sense, that is why we have used them rather than take account of, which are the plain English words used in the consultation so that people understand what it all means. Here, we are using legal English, which has a legal lineage that judges can fully understand. The detail does not need to be set out.
As Lord Mackay of Clashfern said in agreeing with the Governments position from the Opposition Benches:
Guidance as to what is meant by have regard to would either be extremely brief, or possibly, if it were extensive, a bit confusing, to say the least...I have seen some attempts at this kind of work and they are not always crowned with success.[Official Report, House of Lords, 28 April 2009; Vol. 710, c. 159.]
He is quite right; judges know what have regard to means. It means that in making any decision they will have regard to the constitution but will not create a whole series of new causes of action out of it.
What does that mean in practice for organisations within the NHS? Because a court dealing with a case will be able to have regard to, take account of or whatever other phrase people want to use, the judge will be able to acknowledge the existence of, and somebody will be able to pray in aid, the constitution. A case might have been brought because of a cause of action arising in current law, but any organisation within the NHS must know that if it is before a court, it will have to be able to show that it had regard to the constitution. If it did not, it might well be in trouble, because the person praying in aid will be able to say that that body has a legal obligation to have regard to constitution and that it failed.
In practice, how would organisations such as PCTs and trusts have regard to the constitution? They would have to ensure that they take account of or have regard to the document when they make decisions, to ensure that such decisions do not contradict the constitution. The hon. Member for Romsey asked whether the constitution has bite. It has bite, but that does not mean that we have created a whole new area of legal interventions. It has bite in the sense that when a PCT or trust makes a decision, it must look at the document and ensure that what it is doing is not contrary to it, unless it can give a very good reason why not. In those circumstances, it would have to justify its actions.
The hon. Member for Eddisbury has asked whether the staff will be bound. They will be bound only in this sense: if a nurse takes action in a hospital that in some way breaches the constitution, the trust will become liable. Will the individual become liable? No, they will not. Will the trust be responsible for ensuring that it complies with the NHS constitution? Yes, it will. It will have to justify any failure to comply. The trust will become liable, but the individual will not have a new liability as a result of the measure. That is one of the reasons why we do not want to set everything out newly and differently in the legislation.
David Nicholson, the chief executive of the NHS, has written to all chairpersons and chief executives to give them advice on the types of steps that they will need to take to ensure that they have regard to the document. That might involve, for example, having a regular item on the agenda of board meetings to consider how the organisation is performing against the constitution; assessing existing policies and activities such as annual reports, or staff or patient surveys, to ensure that they are in line with the constitution; and looking for opportunities to build the constitution into any policy making, and checking against the constitution before publishing any new policy or document of the trust or organisation. That is how the chief executive suggests having regard to might be applied.
That does not therefore mean that the constitution is entirely legally justiciablewe have already gone through that point, and I will not rehearse the argumentbut it has enough bite. The pledges represent state and departmental policy, and many of them are underpinned by performance mechanisms, but we must not forget that there are other important elements of the constitution principles, values and responsibilities. I cannot see how we can reasonably ask the NHS to abide by the values of compassion, patients responsibilities or excellence. Requiring the NHS to have regard to the constitution means that it must take proper account of everything in the constitution in all that it does, but it does not bind it to an impossible legal duty.
To have regard to is a well established legal term, and I hope that I have put my argument so that members of the Committee know that it has an effect, but not an onerous one. It will give direction to the NHS in future, because the NHS now has a constitution that says what it is all abouta framework document, as I have described it. However, it will not produce a whole series of legal interventions, which we seek to avoid.
I think that I have dealt with most of the points raised by the hon. Member for Eddisbury. He asked about other organisations. If an organisation is not part of the health service, it is not bound by the constitution. However, if an organisation provides a service for the NHS, it will need to have regard to the NHS constitution. An outside body that provides a service not framed by the NHS constitution is, obviously, outside it. If an organisation provides paper to the NHS, for instance, there is a limit to the extent to which it needs to have regard to the constitution, but if it provides a medical facility, it will need to have regard to it.

Stephen O'Brien: Will the Minister give way?

Mike O'Brien: Let me just clarify this issue, because the hon. Gentleman asked about NHS functions and what they are. Then I will give way.
Neither foundation trusts nor anyone else need have regard to the constitution when, for example, they are performing functions that are not for NHS patients. If a private patient provides funding to the trust for their medical treatment, the NHS constitution does not have a locus in relation to that, because it is not an NHS service. It may be provided by an institution contracted to the NHS, but it is not therefore part of the NHS constitution. We only have a locus as far as NHS services are concerned.
The same applies to ambulances, hospices or any other organisation providing a service that is of itself outside the remit of the NHS. They may assist the NHS voluntarily, and they may choose of their own volition to have regard to the NHS constitution in how they do so, but they are not legally obliged to, unless they have entered into a contract obliging them to do so.

Stephen O'Brien: I am grateful to the Minister, and I will not stray into what might be the winding-up remarks on this group of amendments. It is interesting that air ambulances, hospices and indeed suppliers generally, which are not NHS bodiesif they do not carry out NHS functions, they are part of the NHS supply chainwill not be covered. It is potentially problematic, but I suspect that I will have to leave foundation trusts and the treatment of private patients to my hon. Friend the Member for Hemel Hempstead.
As well, under the top-up fee arrangement announced by the Ministers predecessors, it may or may not be necessarywe are not sure yetfor people to receive non-NHS top-up treatment off NHS premises while the rest of their treatment takes place on site. Either there will be a difficulty with examples that need to be thought through and have not been, or the Minister feels confident that the measures will not bite. If he is relying on the flow-through to be effectively in the procurement process, under contract, it strikes me that we will need not only a series of guidelines but an explicit recognition that if patients are to benefit from the rights given by an NHS constitution, there will have to be a whole series of new protocols for anybody who interacts with the NHS who is neither delivering an NHS function themselves nor an NHS body. That will have to carry through via contract, and the only enforcement will be through the privative contract rules, so it will happen on the usual contractual basis.
It is a useful interaction, but I hope that by using those terms, I have made the Minister aware of my concern that the intent behind the constitution does not necessarily capture all those who need to have regard to it or what that might mean in practice.

Mike O'Brien: I fear that the hon. Gentleman is straying into an area of law that would apply if the proposals were enshrined in statute in the way in which he wants them to be, but that will not necessarily apply to the extent that he suggests as a result of how we have chosen to do things. We are able to have regard to the constitution, which is not enshrined in the Bill. As I have already said, providing that a trust can show that it is working in the spirit of the NHS, there may be reasons why it will take the view that it is not held in a straitjacket by the constitution. It may wish, for good reason, to deviate from it.
It is the case that we say that NHS provisionfundingshould be only for the benefit of NHS patients. However, it is also the case that the objective of the provision is to benefit NHS patients. If something would occur because of a restrictive application of the law that would not benefit the patient, the trust may well have good reason for taking a decision that it will do what is proposed none the less. For example, provision of a drug that might be partially funded by a top-up could be provided on NHS premisesto use the example that the hon. Gentleman gavebecause it is for the benefit of the NHS patient. It is primarily funded by the NHS, but it is topped up privately.
Is it the case that that drug cannot be provided on NHS premises? A trust may take the view that, if it were in the statute, it might well become a justiciable issue, but because it is not in the statute, the trust can take a view, providing that it can justify it, that it will be able to deliver the drug in an appropriate way for the benefit of its patient, who is an NHS patient, in premises that are owned by the NHS, even though there may be some contribution from the patient.

Michael Penning: Will the Minister be kind enough to clarify the position of one provider, the air ambulance service? That is funded in myriad different ways throughout the country, but in many areas it is partially funded by the NHSit is commissioned by the PCT or the ambulance trustalthough the helicopter and pilot are almost certainly provided by a charitable organisation or private benefactor. The paramedics and the major trauma surgeons and so on who are on the helicopter, which provides such a vital service, are paid for, or possibly employed, by the NHS. This is an anomaly: are those people in or out? The ambulance trust may well be providing funding and the helicopter will almost certainly be from a charity. It is private provision, partially funded by the NHS. Where does it fit inside the constitution?

Mike O'Brien: Again, we are brought back to the problem that would arise if we did what the hon. Gentleman and his colleagues want to do, rather than the problem that we face. We just do not face that problem and I shall explain why. As the hon. Member for Eddisbury has said, if all this was in the Bill, privity of contract would be the only basis on which rights and obligations would arise. Actually, the provision is declaratory. Any obligations that currently exist will continue to exist. As far as we are concerned, we are not in any straitjacket as a result of this legislative provision. In the way in which we have chosen to do it, it merely sets out what is currently legally enforceable. However, it may be referred tohad regard toin a court case.
We do not have the problems that would arise if we did what those on the Opposition Front Bench propose and stuck the measure in the Bill, because in those circumstances real legal rights could arise. Questions would arise about the meaning of words. In a very detailed way, lawyers would be able to take a whole series of points. Privity of contract would be the basis on which things would arise, because it would all be legally hidebound.
As for the air ambulance, a whole series of questions would arise about what exactly its legal position was, but, because we have chosen to do it in this particular way, all those problems are voided. It is possible that at some stage they might be referred to, but there is no new cause of action that could possibly arise with regard to the air ambulance service that would not arise now. The constitution will not create a new problem for that service. It will not create an anomaly in relation to staff employed by the NHS or the air ambulance service. Any anomaly that might exist exists now. It does not create a new one. But if we do what the hon. Gentleman advocates and stick it in the Bill, who knows what would arise? We would have a whole new area of law and all sorts of new questions could arise as to exactly what would happen in relation to issues such as the air ambulance service.
So, how does the NHS constitution apply to the air ambulance service? Only in the sense that if a trust employs a member of staff, that member of staff is constrained by the obligations that the trust has, because they are an employee. But where a service is commissioned by a PCTfor example, if it commissions the air ambulance servicethe PCT has to have regard to the constitution. In addition, any body contracted to provide an NHS service, such as an air ambulance, would then be in a position where it has to have regard in respect of those NHS services, but not in respect of any other, say, charitable function that it might perform.
As far as we are concerned, there is not a problem for the air ambulance service other than any issues that it might currently have. However, I do not know what problems would arise if we were to do what the hon. Gentleman proposes; no one knows. His approach would create a whole new legal basis.

Sandra Gidley: The mention of the air ambulance service raises another, slightly unusual, question, because that service often makes use of the British Association for Immediate Care doctors. Those doctors do not have a contract with the air ambulances as such. They usually work in another part of the health system during the day and they provide the BASICS services as volunteers. It is not a service that is commissioned. BASICS doctors and paramedics provide services in a voluntary capacity, and so will not be covered by the responsibility of staff, because, in this context, they are not staff. I am sure that people would be very glad of the attention of a BASICS doctor, so this issue may not arise, but where does that voluntary area fit into the picture, because the service is not commissioned and the doctors are not staff?

Mike O'Brien: In exactly the same way as it does now. There is no significant change in the way the service is provided as a result of the constitution coming into play. It does not substantially alter the position of the staff who are employed by the trust. Those who are in a voluntary capacity, however, are in a different position. Are they entirely voluntary? Are they acting to some extent in a situation where they hold themselves out as people trained by the trust, by the NHS, as having certain capabilities to perform a medical function? And therefore does the NHS have liabilities? It might well have, and those liabilities arise now. But there will not be any new and significant liabilities arising as a result of the NHS constitution.
The difficulty in dealing with questions regarding the air ambulance serviceit is a good, but also difficult and therefore bad, way of trying to delineate the obligationsis that it operates across the country in a multiplicity of ways. Some air ambulances operate in ways that are entirely charitable; others are under contract. It is not possible to cover all the areas for the air ambulance service in one brief paragraph, as the service depends on particular circumstances in each locality. However, where a liability currently arises, it will continue to arise. In the future, when the constitution is in play, it should not bring about a new cause of action that does not currently exist. Will it create any new problems? It should not create any new problems for the air ambulance service at all. However if, in legal terms, an air ambulance service has a contract, then it may well have to have regard to the constitution, but only when it makes any decisions in relation to the performance of the NHS parts of that contract, not in relation to its charitable functions.

Michael Penning: This area is very important. In a previous incarnation as a full-time fireman, I went to major traumas, not least on the M25. In those days, we sorely lacked the major trauma skills that people such as BASICS provide. There is no issue where an organisation or an individual, such as BASICS or the air ambulance service, has a contract, because it has been commissioned and that is fine. However, if it is working in an unpaid, voluntary capacity on behalf of the NHSwithout a contract, but providing a servicedoes it have to abide by the constitution, or is it outside the constitution? I know that that is very technical, but it is very important to the volunteers who provide this service around the country.
A moment ago, the Minister said that some air ambulance services are employed and some are not. London is a good example, where the helicopter is provided by a third party, but the London ambulance service provides the specialist technicians on the helicopter. So, we have different services. Where people are volunteering for the NHS, but are not physically employed by it or contracted to it, do they have to abide by the constitution?

Mike O'Brien: In a sense, the hon. Gentleman makes my pointthere are a multiplicity of different arrangements that exist in regard to the NHS and the ambulance service. The real questions that a volunteer, or someone else, is likely to ask are: is the constitution going to put me at more risk; will it put me under obligations that I was not previously under; and will it create an ability for me to be brought before a court, which I was not previously subject to? The answer is that there is no new obligation and no new cause of action that will arise as a result of this. Therefore, the volunteers, or others, in whatever arrangements they are in, need not feel that the constitution puts them in a more vulnerable position, because it does not. If they are acting in an entirely voluntary way and there is no contract, then they do not have to have regard to anything they do not have to regard to now. They may choose, as an organisation dealing with the NHS, to have regard to it, but that would be voluntary.

Michael Penning: With that in mind, would there be an obligation on behalf of those commissioning the voluntary work to require that organisation to abide by the constitution?

Mike O'Brien: That would be the case only in the provision of NHS services. A trust or PCT entering into a contract with any commercial or charitable organisation would have to consider the extent to which the patient could secure the protections that they were due under the constitution. If the trust or PCT felt that that was the appropriate way to ensure that the patient got what they were entitled to, they could make particular reference to the constitution, which would be a decision for them.
Will such an arrangement produce a problem that does not exist now if the person is a volunteer, an air ambulance service or a charity? No. The person may be subject to legal liabilities. Will that change? No. Will the circumstances of the trust that enters into a contract with that person or that accepts services from them change? There will be no new cause of action, but the trust must have regard to the constitution in entering into any agreements.
If we are not careful, we can end up counting the number of angels dancing on a pinhead. Let us try to avoid that by saying that we can provide the reassurance that the air ambulance service and charitable organisations need in terms of practicalities. At the same time, we can ensure that the patients get the reassurance that they need that the constitution has some bite, some importance and some relevance and that it puts some obligation on the various NHS organisations, because those organisations must have regard to it.

Stephen O'Brien: I am grateful to the Minister, who has tried to explore the issue at some length. He is right that we need to be careful not to end up counting angels dancing on a pinhead.
The issue is less to do with an anxiety about what have regard to means in terms of the everyday life of somebody involved in providing NHS services, although I fully followed everything that the Minister said about that and shared his analysis. Of course, these issues have an impact on whether people feel safe to volunteer their effort and confident that they will to not be tripped up by something that is additional to what they face today.
In my constituency, there is a phenomenal and long-running controversy about community first responders, who have been providing an outstanding service to constituents, particularly in rural south Cheshire, because we have abominable problems with the performance of the North West Ambulance Service NHS Trust. That is partly because it is quite tricky to service an area from Carlisle to Crewethe area is far too remote, and everything is run from Bootle. It is inevitable that there will be considerable concerns about the way in which the proposals could impact on volunteers, and my hon. Friend the Member for Hemel Hempstead highlighted my example of the air ambulance. Hospices are also obviously an important point.
The Minister has prayed in aid the CQC, which was established last year, and the Health Act 2006. He says that we should have regard to them, but they are both cases where there are more specific issues to have regard to. A judge may well say, Im not going to create any new causes of action, unless he is Lord Denning, who happened to admit me as a solicitor. However, most judges will not create new law, and that is well understood.
The real problem is that there will be an increase in accountability and, therefore, I fear, in bureaucracy, as bodies demonstrate that they have had regard to the constitution. That concerns me, because it will mean that there will be an audit trail as people defend their position. If that reads over to volunteers, it will change the nature of their activity.
I accept the Ministers assurance that we are unlikely to create any new forms of liability. The situation is like an overlapping Venn diagram. At the same time, however, there may be an increase in bureaucracy because, as with all these things, we will end up with an audit trail, as people seek to demonstrate that they have had regard to the constitution in all their practical applications.
Having had a full explanation, and fully admitting, as I did at the outset, that the words abide by are no more felicitous than the words have regard to, let me say that the important point is the intent of the words as used and what lies behind them. On that basis, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Ordered, That further consideration be now adjourned. (Mary Creagh.)

Adjourned till this day at Four oclock.